Daft Idea Of The Week: Giving People Copyright In Their Faces

from the real-facepalm dept

Copyright maximalism has proceeded along two axes. The first is the term of copyright, which has been steadily extended from the basic 14 years of the 1710 Statute of Anne to today's life + 50 or 70 years, depending on the jurisdiction. The other is the scope of copyright, where there are constant attempts to make yet more fields of human endeavor subject to it – for example fashion or food.

It's a sad sign of how pervasive this idea of granting a copyright monopoly on everything has become that all sorts of people are starting to offer suggestions - like this proposal from privacy groups to give people copyright in their faces:

The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook’s much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.

The author of those words, Derek Bambauer, points out two Constitutional problems. First, that it's the author of a work that gets the copyright, and that would be the person who fixes your face as a photo, say. This would lead to the fun situation where somebody else would own the copyright to your face. The other issue is that you can't copyright facts, and your face, however expressive you might make it, is just a physical fact in its natural state.

Bambrauer also notes deep practical problems with the idea:

So, the proposal is unconstitutional. It’s also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer – subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine – it invites courts to inject their normative views into the analysis.

Much the same could be said of existing copyright works in the online world. "Bystanders" of digital content – for example, people who record their children dancing to music - are regarded as infringers by the recording companies, even though their "use" is entirely a function of the ubiquity of material covered by copyright.

Fortunately, courts do indeed try to "mitigate the harsh effects of this regime" by declaring such things fair use - in some countries at least. But it's a pity that the stupidity of trying to enforce copyright for such incidental uses isn't as manifestly self-evident as it is for the idea of giving people copyright in their faces.

Re: Re:

> This would lead to the fun situation where somebody else would own the copyright to your face.

This is neither strange, unusual (or fun). It is not any kind of stretch in the law, either.

Remember: your genes are already owned by various pharma companies who have patented major sections. Even your tissues and organs are probably not owned by you. This is settled case law. Having someone else (Disney?, Apple? etc...) own copyright to your face is less than even a tiny step away.

Re:

Forget paparazzi. Imagine the lengths news reporters would have to go to in order to not infringe. They'd have to edit every segment filmed in a public area with all faces blurred. You couldn't do any live on-the-scene reporting for fear of a lawsuit.

Then again, cops who assault protesters would love this. First they beat you, then they take your livelihood in civil court because you took a picture of them beating you.

What about plastic surgery

So the interesting question would be what about copyright on a doctors work on someones face? You could argue that plastic surgery is an art and so then they could have copyright on their patients faces(as well as some other parts for that matter). I could see some interesting copyright cases coming out of this.

Twins

Re: Twins

Along this same line of thought; aren't the odds of someone having the same exact DNA as you something like 1 in 25,000,000,000? So that would mean that there's a 28% chance that someone out there right now is already walking around with your face (minus scarring, broken bones or other after the fact alterations).

The author of the work is ...

... your parents.

As a parent I am glad to know that if any of my daughters get famous, have their face photographed thousands of times, I can just bring out the lawyers and sue everyone. This makes a great retirement fund for myself and my wife. Just think, it is no longer Lindsay Lohan who gets the money, but her parents! Michael Lohan can now stay at home and drink/party to his hearts content because the seed from his loins brought forth "The Lindsay".

I think this is a wonderful excuse to have as many kids as possible with as many women as possible so as to ensure a valuable income in your twilight years.

And, let's face it, if the Doctor does work on the face, he is creating a derivative work. (Hopefully not a parody.) I can still probably sue him if my income drops as a result of his work.

Re: The author of the work is ...

Re: The author of the work is ...

This is the same thing I was thinking. In many cases the parents would own the copyright on their children's faces, but not always. The creator of the creative work owns the copyright, so as long as your parents used a method other than the missionary position that should be enough to meet the "creative" standard. As for all the conception that resulted from boring sex, I think that's all public domain material... :P

'in'

I agree with the spirit of your argument here, but think you should be more precise in your language. It is the imprecision that makes this idea daft.

Give people copyright 'in their faces' doesn't suggest an appropriate relationship between the face and the copyright.
Alternatives include "copyright of their faces", "copyrights over their own faces" or "the copyright to their faces".

There is no absolute right to one's own likeness, but there are already certain rights that apply to likenesses, to some extent and these are the reason for 'life rights' contracts and photo releases. The right to privacy also has some constitutional basis, and people snapping photos with phones anywhere where there is more than a reasonable expectation of privacy and no compelling public interest at stake may be violating that right, and justice would be served by charging them with something -- but not something copyright related. Privacy and intellectual property are two entirely different things and should remain legally and linguistically distinct.

You could have joined copyright if you had twins, though there could be some problems with dilution if they were identical twins (or more).

And if the parents suddenly bite the big IP in the sky, you would have real interesting problems with orphaned works.

And if that 'work' decided to make other works.. could that be an infringement under SOPA.. would they be called rogue sex deviants?

You would need licensing slips to use before any illicit/lude behaviour otherwise you would be classified as a major copyright pirate and all because you wanted some booty.. Arrrrrrrrrrr

Oh the horror!

PS: It's xmas Eve here in Australia and I would like to take this opportunity wish EVERYONE at Techdirt a happy, peaceful, wonderful and above all a safe Christmas and New Year. May your god(s) or otherwise be with you.

I have a simple solution

If someone sues me for taking a picture of their face in public, which to me means any place other than their residences, then removing their face will prevent future copyright violations. Problem solved. (I'd use a fish fillet knife, thus preserving the underlying muscles and nerves, and then they could get a new face. Once they have someone else's face transplanted, they cannot validly claim copyright.).